Date: 20020328
Docket: IMM-673-01
Neutral citation: 2002 FCT 351
BETWEEN:
MARTIN KABUYAMULAMBA-KABITANGA
IRENE KABUYA-DIENGA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants are husband and wife and citizens of the Democratic Republic of Congo ("DRC") whose refugee claims, based on imputed political opinions, were refused by the Refugee Division of the Immigration and Refugee Board (the "tribunal") on January 22, 2001. The tribunal did not believe their testimony.
[2] The applicants fear the authorities in the DRC because the husband is a friend of Bizima Karaha, one of the rebel commanders seeking to overthrow the government. They met at university and were roommates for three years between 1990 and 1993. Mr. Karaha was Minister of Foreign Affairs in the Kabila government, spawned from l'Alliance des forces démocratiques pour la libération du Congo ("AFDL") before joining the rebellion in August 1998.
[3] Martin Kabuyamulamba-Kabitanga testified he saw Mr. Karaha in March of 1997 and, on his advice, joined the AFDL as a team leader from March 1997 to February 1998 when, with Mr. Karaha's help, he found employment in the government as a Port Coordinator in June 1998. They were seen together in July 1998 just before the rebellion broke out on August 2, 1998.
[4] According to the applicants, all of their troubles with the authorities arose because the male applicant was suspected by them of being part of the rebellion, an accomplice of Mr. Karaha.
[5] According to his testimony, the male applicant was arrested and jailed several times:
(1) from August 15, 1998, to January 20, 1999, during which time he was tortured and lost an eye;
(2) in February 1999, when he was jailed for 25 days;
(3) from July to September 1999;
(4) in April 2000 when he was arrested for ten days after a fire had broken out at the airport where his wife worked.
[6] After each release from arrest, he went back to his job in the government as a Port Coordinator.
[7] Irene Kabuya-Dienga testified she was arrested by the authorities who were looking for her husband. This happened two weeks after the rebellion had broken out. She was jailed from August 12, 1998 until December 27, 1998. During this time, she was raped and lost her unborn child. After her release, she went back to work as a Customs Officer at the airport. She testified she was also arrested on April 14, 2000 following the fire at the airport and held for 48 hours.
[8] The event which led to their flight occurred on June 10, 2000 when both were hurt in a car accident which he testified was intentionally caused by the authorities. They were hospitalized. He was under guard at the hospital but a friend of his paid a bribe and they were able to flee the hospital without problems. They left their home country on June 20, 2000 arriving in Canada on June 23, making refugee claims.
THE TRIBUNAL'S DECISION
[9] The tribunal's conclusion the applicants were not credible is based mainly on implausibilities drawn by it. First, the tribunal did not believe the authorities were involved in the car accident. He was told of the authorities' involvement by his treating physician. The tribunal writes:
Interrogé sur les raisons pour lesquelles le médecin aurait su cela, le revendicateur a déclaré qu'il devait savoir ce qui c'était passé avant de les soigner. Le tribunal considère non-crédible que le médecin traitant aurait appris que cet accident avait été causé délibérément par les agents de l'ANR [Agence nationale de renseignements] et que cette information lui était nécessaire pour soigner les revendicateurs.
[10] Second, the tribunal did not believe the applicants were admitted to an ordinary civilian hospital. It was of the view that if he was really wanted by the authorities, appropriate means would have been taken to ensure his appearance before the ANR. The tribunal writes:
Il aurait été transféré dans un hôpital militaire où on ne se serait simplement pas soucié de son état de santé. La documentation est claire sur le fait que les corps de police et de sécurité font usage de mauvais traitements et de torture pour arriver à leurs fins. Il n'aurait pas eu non plus cette sécurité d'engager afin de surveiller la chambre du revendicateur pendant le temps de son hospitalisation qui selon son FRP aurait été de 10 jours mais au plus six jours selon les notes prises au point d'entrée.
[11] Third, what the tribunal found the least credible in the male applicant's testimony was the fact he could re-integrate in his job within the government after each period of detention. He had been placed there by Mr. Karaha and the agents of the ANR knew this because they told him so.
[12] Fourth, during all this time, he was able to keep his apartment which had been made available to the couple since the time he joined the AFDL -- a privilege offered to Mr. Kabila's party faithfuls. The tribunal writes:
Le tribunal ne croit pas que le régime de Kabila aurait justement toléré qu'un de ses membres, ancien porteur de l'idéologie du parti, parrainé par Bizima Karaha dont il se disait l'ami, aurait montré une telle bienveillance à l'égard du revendicateur en lui laissant son appartement et son emploi. Ceci ne correspond pas à la documentation. Les individus soupçonnés à tort ou à raison d'être prêts de la rébellion subissent de mauvais traitements importants.
[13] The tribunal referred to documentary evidence to support its view those suspected of supporting the rebellion were harshly treated.
[14] He introduced in evidence a medical report from Dr. Aref Vaezi. The tribunal did not give it any weight for the following reason:
Des marques et blessures ont en effet été observées, mais les circonstances les ayant causées peuvent être nombreuses et tout autre que l'histoire soumise par le revendicateur.
[15] The tribunal asked him why his PIF did not reveal the applicants had made any efforts to set the government straight as to their non-involvement with the rebellion. The tribunal said he testified he made such efforts. The tribunal did not believe him because he had not testified about such efforts when dealing with the point. Also, these efforts were not mentioned in his PIF and it was only after being questioned about it he referred to these efforts. The tribunal concluded:
Si le revendicateur avait été à ce point pourchassé, il aurait été raisonnable de s'attendre qu'il utilise ses contacts pour que cessent ces arrestations mal fondées et périodes d'emprisonnement. Son comportement n'est pas compatible avec ce qu'il prétend être.
[16] The tribunal was critical of the fact the applicants had not left the DRC before they did. It wrote:
Le revendicateur a de plus témoigné que l'idée de partir de son pays lui était venue lorsqu'il a vu le traitement subi par sa femme suite à l'accident. Toutefois, son épouse avait, selon son histoire, déjà subi un viol suite auquel elle aurait perdu son enfant, et une période de détention de plusieurs mois soit d'août à décembre 1998. Devant ces faits, l'explication du revendicateur n'est pas raisonnable afin de justifier le délai à quitter le pays.
[17] The tribunal then referred to the testimony provided by Irene Kabuya-Dienga in these terms:
La revendicatrice a également témoigné afin de relater les événements qu'elle aurait vécus. Mais la base de sa revendication est liée à l'histoire de son époux et de ses liens avec Bizima Karaha, ce que le tribunal ne juge pas crédible.
THE ISSUES
[18] Counsel for the applicants raised the following issues:
(1) Relying on the Federal Court of Appeal's decision in Retnem v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 428, even though their claims were joined, the tribunal erred in failing to assess independently the evidence and the claim of Irene KabuYa-Dienga.
(2) The implausibility findings made by the tribunal were unreasonably drawn. The tribunal's findings were not based on the evidence but rather, on speculation and conjecture on its part. Counsel for the applicants relies upon the Federal Court of Appeal's decision in Karikari v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 586 as well as that same Court's decision in Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584.
[19] The applicants also argued the tribunal misconstrued the medical report on the male applicant's injuries.
ANALYSIS
(1) Standard of review
[20] The nature of the applicants' challenges to the tribunal's decision relate to findings of credibility which are findings of fact. As a result, paragraph 18.1(4)(d) of the Federal Court Act is engaged. The standard of review is patently unreasonable findings.
(2) Conclusions
(a) Issue No. 1 -- the treatment of Irene Kabuya-Dienga's claim
[21] In Retnem, supra, the Refugee Division devoted only one sentence to the wife's claim stating that "for the same reasons" as applied to her husband, they determined her not to be a Convention refugee. Justice MacGuigan wrote the following in allowing the appeal:
In my view the Board was also in clear error in its treatment of the appellant wife's claim. Although it may often be appropriate to treat husband and wife claims identically, in this case the claimants married only in 1989. Although the appellant husband had apparently lived with his wife-to-be's family for some of the other years in question they were not always together (e.g., when she spent some time in India with her family). There were some distinctive elements in the wife's case, and so the Board could not simply decide her case "for the same reasons" as her husband's. [emphasis mine]
[22] My examination of the record, the transcript and the tribunal's decision, lead me to different conclusions from those advanced by counsel for the applicants who argued, (1) she put forward a distinctive claim -- a gender claim; (2) the tribunal rejected her evidence simply because it found her husband's story not to be credible; (3) the tribunal did not say why it rejected her evidence and claim; (4) she testified to discreet events to which she was the only witness and her evidence corroborated her husband's.
[23] I find Irene Kabuya-Dienga did not assert a distinct claim from that of her husband and that the events she experienced were unlinked to her husband's story. In her PIF, she bases her claim on her husband's claim and its root cause of being a suspected collaborator in the rebellion against the Kabila government. Also, it is clear from her testimony related to her arrests and other events, they all arose because of the authorities' wanting to know where her husband was or what her husband had done.
[24] Finally, her testimony shows her fear of return to the DRC is still linked to the authorities' suspicion of her husband's participation in attempts to overthrow the government.
[25] Further, in my view, counsel for the applicants misreads the tribunal's decision when he asserts the tribunal did not say why it did not believe her testimony. The tribunal rejected her testimony because her claim was based on her husband's story and his link with Bizima Karaha which the tribunal found not credible because of implausibilities.
(b) Issue No. 2 -- the credibility findings against the husband
[26] Counsel for the applicants made various attacks on the implausibility findings drawn by the tribunal of which there were four, unlike the situation in Karikari and Ye, supra, where the decisions appealed from hung on the thread of one implausibility. I am not persuaded by the applicants' attack on the implausibilities either on the basis of having no evidentiary foundation or being unreasonably drawn.
[27] The Federal Court of Appeal has told us in Aguebor v. Canada (Minister of Employment and Immigratioin), [1993] F.C.J. No. 732, the tribunal is a specialized one with complete jurisdiction to determine the plausibility of testimony -- to gauge the credibility of an account and to draw the necessary inferences. As long as the inferences drawn by the tribunal are not so unreasonable as to warrant the Court's intervention, its findings are not open to judicial review.
[28] Moreover, that same Court in Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415, held a tribunal is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[29] I find Aguebor, and Shahamati, supra, have application here.
[30] The special and unique context in which the implausibilities were drawn must be recalled. The tribunal was assessing the claim of a party member and government employee (as was his wife in terms of the latter) suspected of collaborating with one of the leaders of a rebellion seeking the overthrow of authorities who were allegedly pursuing him and, at times, had him under their control. Against the documentary evidence on the human rights violations of the Kabila government the implausibility findings were not unreasonable.
(c) Issue No. 3 -- the medical report
[31] Finally, the tribunal, in my view, did not misconstrue the evidence in rejecting the medical report. The factual background to that report was the male applicant's PIF which set out a story which the tribunal did not believe. In the circumstances, it was not unreasonable for it to say the injuries observed could have stemmed from numerous other causes other than those identified in his PIF.
[32] For these reasons, this application for judicial review is dismissed.
[33] Counsel for the applicants proposed a question for certification as follows:
Does the Refugee Division err if a spouse's claim is dismissed because the husband's credibility is rejected if the spouse has testified to events relating to her fear for which she is a direct witness?
[34] Counsel for the respondent opposes certification. I agree. The question is premised on factual foundations which were not found in this case and, as a result, would not be dispositive of the case.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MARCH 28, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-673-01
STYLE OF CAUSE:Martin Kabuy Amulamba Kabitanga and others v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 7, 2002
REASONS FOR ORDER OF: The Honourable Mr. Justice Lemieux DATED: March 28, 2002
APPEARANCES:
Mr. Micheal Crane FOR THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal Crane FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada